Dishman v. Griffis

• Decision Date: 30 November 1916
• Docket Number: 7 Div. 798
• Parties: DISHMAN et al. v. GRIFFIS et al.
• Court: Alabama Supreme Court

73 So. 966

198 Ala. 664

DISHMAN et al. v. GRIFFIS et al.

7 Div. 798

Supreme Court of Alabama

November 30, 1916

Rehearing Denied Jan. 18, 1917

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Action by A. Dishman and another against J.B. Griffis and others. Judgment for defendants on its plea, and plaintiffs appeal. Reversed and remanded.

Hugh Walker, of Anniston, for appellants.

Knox Acker, Dixon & Sterne, of Anniston, for appellees.

MAYFIELD J.

Garnishment is a species of attachment, and is essentially a statutory remedy; though derived from the custom of London it is not one of the ancient common-law remedies, and in the absence of statutes the remedy would not exist. Being, however, a kind of attachment, it falls within the protection of our statutes as to attachments, which provide that an enactment on this subject must be so liberally construed as to advance the manifest intent of the law. Such statutes, therefore, have never been construed strictly, like those which provide summary proceedings wholly in derogation of the common law.

Garnishment is intended to reach choses in action, claims, and demands which are not capable of seizure by or through execution or ordinary writs of attachment; and, in some cases, to effect the discovery of certain property of the defendant which may for the time being, be in the custody, possession, or control of some third party called the garnishee.

Garnishment is a suit by a creditor against the debtor of his debtor. The judgment against the latter is for and in the name of the plaintiff, for an amount not exceeding the judgment against the debtor of plaintiff or the defendant in the main suit. The judgment in garnishment is termed--what it is in law--one of condemnation, and is conclusive between the garnishee and the defendant in the main suit. The service of the garnishment creates a lien on the debt, demand, or property to be subjected. Inchoate in its inception, the lien is enforced or perfected by judgment against the garnishee, and makes the plaintiff a judgment creditor in the place and stead of the original creditor of the garnishee, who is the defendant in the main suit and debtor of plaintiff. The purpose of the proceeding is to compel the garnishee to pay or answer to the plaintiff that which he would otherwise have to pay or answer to the defendant; the proceeding substitutes the plaintiff for the defendant as the garnishee's creditor. Unless the garnishment issues upon a judgment, the law requires the plaintiff to give bond.

The proper condition of a bond for a garnishment in aid of a pending suit is to prosecute the original suit to effect and to pay the defendant therein all such damages and costs as he may sustain by the wrongful or vexatious suing out of the garnishment. Barber v. Ferrill, 57 Ala. 446; Hays v. Anderson, 57 Ala. 374; 3 Mayf.Dig. 917. The bond is intended for the indemnity of the defendant in the suit, not for the indemnity or benefit of the garnishee. Pounds v. Hamner, 57 Ala. 342; Hays v. Anderson, supra; 7 Mayf.Dig. 917.

The defendant may sustain damage from the wrongful suing out of the garnishment; the garnishment is a species of attachment, and the tendency of suing it out is to harass the defendant in the suit, not the garnishee; to bring odium on him, not on the garnishee; and if the garnishee is in fact indebted to the defendant, the result is to tie him up in the control and collection of the debt due or owing to him. Hence the bond is payable to him, and he alone can sustain injury from a breach of its condition. Pounds v. Hamner, 57 Ala. 342; 3 Mayf.Dig. 917.

Two essential facts are necessary to justify a garnishment in aid of a pending suit: First, that there is an existing indebtedness from the defendant; and, second, that in the belief of the person praying the process garnishment against the supposed debtor "is necessary to obtain satisfaction of such claim." Pounds v. Hamner, supra; 3 Mayf.Dig. 917.

If the plaintiff in the pending suit had reasonable cause to believe the existence of the facts necessary to the suing out of the process of garnishment, and was not influenced by a reckless or vexatious spirit, the recovery cannot exceed actual damage; whether he was so influenced is an inferential fact to be determined by the jury from the circumstances in evidence. Id.

Section 2966 of the Code applies to actions on bonds for garnishments in aid of pending suits. The statute provides as follows:

"At any time within three years of the suing out of the attachment, before or after the suit is determined, the defendant in attachment may commence suit on the attachment bond, and may recover such damages as he has actually sustained, if the attachment was wrongfully sued out; and, if sued out maliciously as well as wrongfully, the jury may, in addition, give vindictive damages."

Prior to the Code of 1907 this particular section in terms prohibited the defendant from contesting the grounds of the attachment or garnishment on the trial of the main suit, and therefore necessarily...